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The Africa-ICC Trouble: A Case for Systemic Reforms

The last quarter of the year 2016 was a bad one in the history of the International Criminal Court (ICC). South Africa announced its intention to withdraw from the Rome Statute and submitted its notification to the Court on October 19, 2016. Burundi and Gambia followed on October 27, and November 10, 2016 respectively. While African discontent with it has been brewing for some time,1 the notifications for withdrawal from the ICC mark a step backward in the process of developing the institution into a truly international court. South Africa being the first country to file the ‘notification of withdrawal’2 comes as a major setback as it was one of the forerunners in the shaping of the Statute of the ICC. Late Nelson Mandela, the former president of South Africa, was a champion of the idea of an international court dealing with the impunity of humanitarian crimes.

The institution of ICC came into existence through the Rome Statute signed in 1998, and has been enforced from the year 2002 after ratification by 60 signatory states. It has been under the scanner ever since. Important and powerful countries have kept at a distance from the jurisdiction of the ICC as they find it unrealistic and unhelpful. Although the US and Russia had signed the Rome Statute, they did not ratify it. The US has passed a special American Service Members’ Protection Act (2002), also known as the Hague Invasion Act, to protect its soldiers from ICC jurisdiction. The Russian Foreign Ministry, on November 16, 2016 expressed its willingness to “unsign” the treaty establishing the Court alleging that it has “failed to meet the expectations to become a truly independent, authoritative international tribunal”.3 The President of Philippines Rodrigo Duterte also said that he “might follow” Putin if he withdraws Russia out of the Pact.4 Leading developing countries and rising powers India and China have not even signed the Statute as they have reservations about the nature and implementation of the treaty. It is evident that the problem with the ICC is not just African, but fundamentally political and international.

The stated as well as alluded to reasons for the withdrawals by South Africa, Burundi and Gambia tell us that the initial fears regarding the working of the ICC are coming true. The current cases in the ICC and the political complications regarding them have allowed the African countries to raise the issue of the ‘West’ victimising Africa through a ‘neocolonial’ instrument. The reasons given for the intention to withdraw by the three African countries invigorate the debate on the viability and credibility of the ICC.

South Africa

The withdrawal notification by South Africa has come in the wake of the country’s failure to fulfil the ICC’s expectation to arrest President Omar al-Bashir of Sudan when he was in Johannesburg to attend the African Union summit meeting in June 2015. Indicting Bashir for genocide, war crimes and crimes against humanity, the ICC had issued a warrant to arrest him. Now, the issue of arresting Bashir has turned political and constitutional in South Africa as the Government failed to implement an internal High Court order to arrest him. The Government of South Africa had allowed Bashir to leave the country despite a high court arrest order.5 The Jacob Zuma Government in South Africa then decided to quit the ICC to resolve the conflict between ‘diplomatic immunity’ to the visiting heads of states and the Rome Statute. The Zuma Government introduced the ‘Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill’ in the National Assembly in November 2016. It explains that the Republic of South Africa “is hindered by the Implementation of the Rome Statute of the International Criminal Court Act, 2002” together with the Rome Statute in “exercising its international relations with the heads of state of foreign countries” even when the country has been actively involved in promoting peace, stability and dialogue. However, the constitutionality of the Cabinet decision was challenged by Democratic Alliance (DA), the opposition in South Africa, in a domestic High Court.

Burundi

The Parliament of the Republic of Burundi, on October 12, 2016 voted to withdraw its country from the Rome Statute. Although the country has given no reasons in the notification for its withdrawal, the circumstances and statements before and after the notification was issued give us some sense of the causes. The decision is supposed to be triggered by the announcement of a preliminary examination by the ICC on April 25, 2016 regarding the “acts of killing, imprisonment, torture, rape and other forms of sexual violence, as well as cases of enforced disappearances that have been allegedly committed since April 2015 in Burundi.”6 Gabriel Ntisezerana, former vice president of Burundi and currently a lawmaker, said that the court was "a political tool used by powers to remove whoever they want from power on the African continent."7 Alain Nyamitwe, the Foreign Minister of Burundi said, “I believe that there are some other politically motivated reasons which have pushed the ICC to act on African case. How many times have you heard about the ICC investigating crimes committed in Iraq?”8

Gambia

The decision to quit the ICC was made by President Yahya Jammeh; and as in the case of Burundi, Gambia did not state the reasons for the intended withdrawal. Jammeh had seized power in a coup in 1994 and was to face an election on December 1, 2016. He has been in power for a long time and has been accused of suppression of dissent, freedom of press and human rights violations.9 But, Gambia's Information Minister Sheriff Bojang had described the ICC as "an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans."10 Gambia has also been trying to prosecute the EU in the ICC for the death of Africans trying to reach European shores for refuge. It is also supposed that the long time president initiated the withdrawal process after anticipating an ICC investigation against himself.

Systemic Trouble

The tension between African countries and the ICC is neither primarily racial nor regional in nature. South Africa did not rake up the colonial or racial issues as the reason for its intention to withdraw. The racial and regional aspects are the ‘ideational superstructures’ created on the ‘base’ of the issue of discrimination in the constitution of the ICC and the ways it functions. The ICC can start investigation in three ways: (a) a state-party brings a case to the Court; (b) the Court takes a suo motu cognizance; (c) The United Nations Security Council (UNSC) refers a case to the Court. The latter two modes of functioning are quite problematic as they lend themselves to the play of global politics and manipulations. However, the principles of complementarity and the court of last resort reconcile and mitigate some of the concerns of the countries being investigated under the suo motu principle as they can initiate their own internal enquiry and court trial in the matter of concern; and thereby avoid an ICC investigation.

The UNSC referral method to initiate investigation is the most controversial and fundamentally discriminatory in nature as it is another political lever with the permanent members (P5) of the UNSC. In effect, the provision of the referral by UNSC means a veto power given to the P5 against any possible investigation of crimes related to them or their allies. Moreover, it binds even the non-signatory states to the Rome Statute, thus violating a fundamental principle of the law of treaties – that the states which have not signed a treaty cannot be bound by it. Countries like India had objected to the provision subordinating the court to the UNSC as they could foresee the trouble it would pose for the very existence and legitimacy of the ICC. Hence, the current African problem is a larger systemic problem that cripples the ICC from being a truly global criminal justice court. The dissenting state voices from Africa are comments on a discriminatory global order that is inherent in the UN system.

Conclusion

The ‘revolt from Africa’ is not a surprise as nine of the cases currently under consideration at the ICC are from Africa. The historical experiences of Africa before and during the Cold War linger on in the post-Cold War period as well. The non-performing, dictatorial and oppressive regimes fear an external intervention through the ICC that might delegitimise, trouble or depose them. Further, the conflict between the diplomatic immunity and the implementation of the Rome Statute is over the concept of national sovereignty, the very foundation of the current international system. Hence, The African notifications of intention to quit ICC have yet again highlighted the need for systemic changes in the current world order. Only a non-discriminatory, democratic and inclusive UNSC reflecting the contemporary world could address these challenges and questions. The presence of an African state or two in the UNSC would have compelled the AU and the African states to look at the ICC cases differently and not project them as issues of continued racism and colonialism. However, with the current structures and relationship of the UNSC with the ICC, the international Court would remain prone to such perennial allegations.

Dr. Saurabh Mishra is research Assistance, ALACUN Centre, IDSA.

1. Nine out of the 10 cases under consideration by the ICC are from Africa; and some of the heads of the states have also been accused of genocide and war crimes. Referral of Libya, Sudan and Kenya to the ICC, and investigating their heads of state became a bone of contention between the AU and the ICC. Although many African countries are in favour of the institution of the ICC, the official position of the AU, due to sovereignty issues and perceived discrimination against Africa, remains critical for the ICC.

2. A party-state to the Rome Statue can withdraw from the Statute under article 127(1) by submitting a written notification to the Secretary-General of the United Nations.